Women who are very corpulent are often barren, for their corpulence either exists as a mark of weakness of the system, or it depends upon a want of activity in the ovaria; thus spayed, or castrated animals generally become fat.
A state of exhaustion of the uterine system, occasioned by frequent and promiscuous intercourse with the other sex, is also a very common cause of barrenness in women, and hence few prostitutes conceive.
In some cases the uterine system is capable of being acted on by the semen of one individual, but not by that of another, for many instances are on record where persons have lived in wedlock without offspring, and being, after divorce, re-married, have each had families.
3. OF THE LEGITIMACY OF CHILDREN.
The validity of Marriage considered on medical grounds being established, the next point to be considered in the same light is the legitimacy and illegitimacy of children, as it may legally affect their rights to succession and property[[336]]. On this point the laws of England are most indulgently favourable to the child, for provided “it be born though not begotten in lawful wedlock,” (1 Bl. Com. 454.) the law will presume its legitimacy, (5 Rep. 98.) (præsumitur pro legitimatione). But this presumption may be rebutted by evidence. “As if the husband be out of the kingdom of England (or as the law somewhat loosely phrases it, extra quatuor maria[[337]]) for above nine months, so that no access to his wife can be presumed, her issue during that period shall be bastards.” (1 Bl. Com. 454. 457. Co. Litt. 244.) but it was held that if the husband was in England during any part of the time between the conception and the birth (without any reference to the physiological impossibility of the fact) the child would be deemed legitimate (Rex v. Alberton. 1 Raym. 395.) If the husband be proved castrate the issue are bastards (1 Ba. Ab. 310. Rolle Ab. tit. Bastard, 356.) But though the husband were divorced from his first wife causa frigiditatis, yet his issue by his second were adjudged legitimate, (5 Rep. 98.) and this is reasonable, for there may be an impotentia erga hanc, from various causes; (vide post.) If a man marries a woman who is pregnant, he is generally to be supposed cognisant of the fact, and that he is the father of the child; and the law which regards the time of birth, and not of conception, pronounces it legitimate. But the husband may have been imposed upon, and utterly ignorant[[338]] of his wife’s state. A man returning from abroad (to put the case of non access more strongly) marries immediately on his arrival; within four or five months his wife is delivered of a perfect child which lives, shall such child inherit? on the one hand Præsumitur pro patre quem nuptiæ demonstrant, on the other, the ordinary course of nature prohibits the supposition that the child can be the offspring of the husband. But see Rolle Ab. tit. Bastard, p. 358, where the woman was grossement enseint the issue was held un mulier, and contrary decisions cited there: see also Foxcroft’s Case, Rolle, 359, & sec. 45. So also a man may purposely marry a pregnant woman to disappoint his supposed heir at law; on the other hand a woman may for some purpose of malignity bastardize her offspring, as was the case of Savage the poet.[[339]]. But none can be legitimate who are born out of wedlock; in which our law differs materially from the Roman or Canon law, and it is somewhat singular that the celebrated[[340]] “quod nolunt Leges Angliæ mutare” of the Barons, at the Parliament of Merton, in the 20th of Henry the 3d, should have been induced by an attempt on the part of the bishops, (omnes episcopi magnates) to introduce this novelty,—that children born before marriage should be legitimised by the subsequent performance of the ceremony between their reputed parents. There may indeed be a few instances where illegitimate children have been legitimised by Act of Parliament[[341]], but though such legislative interference might in some cases of extreme doubt and hardship be deemed not only excusable, but desirable, the present feeling appears to be so strong against such Acts, that the rule of Law may be considered as among the most fixed; yet there are some points which may yet receive considerable elucidation from the studies of the physiologist, and these will resolve themselves into several questions, (vide post.)
For the legal authorities on this subject we cannot do better than refer the reader to the very learned note of Mr. Hargrave in his valuable edition of Coke Littleton, and to the same subject in his Jurisconsult Exercitations, vol. 3. p. 411; but as these may not be of easy access to our medical readers we have added a full extract of them in the Appendix, p. 209.
SUPPOSITITIOUS CHILDREN.
But there is yet another question which may, and in truth frequently does occur; where either a pretended pregnancy is followed by the grosser fraud of imposing a strange child upon the husband, either for the purpose of fixing his affection, or securing his estate; or where a living and healthy child is substituted for one either dead, or too sickly to give reasonable hope of prolonged existence. To this crime our laws assign no specific punishment; the parties can only be indicted for a conspiracy as they might have been for any ordinary misdemeanor; the real punishment falls on the unconscious instrument of the wrong,[[342]] the child, who having been educated in every indulgence that affection and affluence could bestow, finds itself on the exposure of a vindictive menial, without name, hope, or fortune; abandoned by its assumed, it may be unable to trace its real parents, yet the authors of this irreparable wrong have generally escaped even the inadequate punishment to which their crime had subjected them. Those who are curious to inform themselves of the doubts and difficulties with which such questions are entangled, will do well to consult the proceedings in the celebrated Douglas case,[[343]] than which few have ever excited so much difference of opinion on the bench, or so much intensity of interest in the public mind. The Anglesea case also, with the several trials connected with it,[[344]] is well worthy of perusal by those whom interest or curiosity may lead to this species of investigation.
We should not have alluded to personal resemblance[[345]] between parents and children, as a mode of proof in these cases, first, as we have doubted whether such proof can be satisfactory, and secondly, as it may not be considered a point of medical evidence; but as to our first doubt, we find that so high an authority as Lord Mansfield thought that a family likeness was a material proof that a child was the genuine offspring of the parents through whom he claimed. His lordship in delivering his judgment in the House of Lords on the Douglas cause, is reported to have said, “I have always considered likeness as an argument of a child’s being the son of a parent; and the rather, as the distinction between individuals in the human species is more discernible than other animals[[346]]: a man may survey ten thousand people before he sees two faces perfectly alike; and in an army of a hundred thousand men every one may be known from another. If there should be a likeness of feature, there may be a discriminancy of voice, a difference in the gesture, the smile, and various other characters; whereas a family likeness runs generally through all these, for in every thing there is a resemblance, as of features, size, attitude, and action. And here it is a question, whether the appellant most resembled his father Sir John, or the younger Sholto resembled his mother Lady Jane? Many witnesses have sworn to Mr. Douglas being of the same form and make of body as his father; he has been known to be the son of Colonel Stewart, by persons who had never seen him before; and is so like his elder brother, the present Sir John Stewart, that except by their age, it would be hard to distinguish the one from the other.”
“If Sir John Stewart, the most artless of mankind, was actor in the enlevement of Mignon and Saury’s children, he did in a few days what the acutest genius could not accomplish for years; he found two children, the one the finished model of himself, and the other the exact picture in miniature of Lady Jane[[347]]. It seems nature had implanted in the children what is not in the parents; for it appears in proof that in size, complexion, stature, attitude, colour of the hair, and eyes, nay in every other thing, Mignon and his wife, and Saury and his spouse were, toto cœlo, different from and unlike to Sir John Stewart and Lady Jane Douglas.” 2 Collec. Jurid. p. 402.